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A first offense of open or gross lewdness is usually just a gross misdemeanor in Nevada, but it does carry a requirement to register as a sex offender.

1. What is the legal definition of open or gross lewdness in Nevada?

The Nevada crime of "open or gross lewdness" is extremely broad. It typically comprises either of the following two circumstances:

any sexual act that is done either in public or in a private place where others could see it; OR

any sexual encounter that is nonconsensual but falls short of rape1

1.1. Sex acts done openly

An NRS 201.210 violation occurs when someone behaves in a sexually explicit way where bystanders could potentially see it. Henderson criminal defense attorney Michael Becker gives an example:

Example: Jason and his girlfriend Sandy go to a bar in the Fiesta casino and make out heavily, and grope each other, in front of the other patrons. After they get home, they have sex in front of an open window. If caught, Jason and Sandy could be booked at the Henderson Detention Center. Jason and Sandy would each face two charges of violating NRS 201.210: One for their sexual acts at the bar, and one for their sexual acts in front of the open window.

Note that it does not matter in the above example whether other patrons were at the bar, or whether anyone saw them through the window. It also does not matter that Jason and Sandy did not mean to offend anyone. Any noticeable sexual act done in a place where third parties could be exposed to it is an NRS 201.210 violation.2

1.2. Nonconsensual sex acts not amounting to rape

An NRS 201.210 violation occurs when someone touches someone else in a sexual way but with no penetration, and that person does not consent to the touching.4Laughlin criminal defense attorney Neil Shouse provides an illustration:

Example: Joshua goes to a bar in Reno and starts flirting with Susan. Susan tells him to go away, but Joshua then gropes her backside. If caught, Joshua could be booked at the Washoe Detention Facility for violating NRS 201.210 because he sexually touched Susan, who did not consent to the touching.

The difference between an NRS 201.210 violation and sexual assault (the legal term for rape) is that sexual assault involves penetration. This includes sexual intercourse, oral sex, anal sex, digital sex ("fingering"), or inserting an object into a bodily orifice in a sexual way.5 Since there was no penetration in the above example, Joshua should not be prosecuted for rape.

2. Do I have to register as a sex offender if I am convicted of open or gross lewdness in Nevada?

Yes. However, people convicted of violating NRS 201.210 as a gross misdemeanor and not a felony are typically classified as low-risk Tier 1 offenders, which are not searchable in a public database. Only people deemed to have a high risk of committing further sex crimes are viewable through an online sex offender search.6

3. What are Nevada's penalties for open or gross lewdness?

The penalties for violating NRS 201.210 depend on whether the defendant sustained previous convictions for violating NRS 201.210 or other sex offenses:7

First or subsequent offense in the presence of a child under 18 or a disabled person

Category D felony:

one to four (1 - 4) years in prison, and

a possible fine of up to $5,000, and

sex offender registration

Note that penalties for violating NRS 201.210 are significantly less than those for rape (non-consensual sexual penetration). Rape is a category A felony carrying life with or without the possibility of parole.8

3.1. Plea bargains

Depending on the case, it may be possible to get NRS 201.210 charges reduced to a misdemeanor such as simple battery or disorderly conduct. In addition to carrying lesser penalties, these misdemeanors do not require sex offender registration.

If the defense attorney can show the D.A. that the evidence is too weak to sustain a conviction, the D.A. may dismiss the case.

4. What are the defenses to Nevada charges of open or gross lewdness?

Which defenses would work best in fighting charges for violating NRS 201.210 depend on the unique circumstances of the case. The following are three common defense strategies:

Entrapment

False accusations

Consent

4.1. Entrapment

It is illegal for police to trick people into committing a crime if they were not already inclined to commit it.9

Example: Bob is an undercover police officer. He goes to a gay bar and pretends to flirt with Zack. Bob then asks Zack to grope him. Zack says he would rather not go that far in public. Bob then flashes his gun. Fearing for his safety, Zack gropes Bob. Bob then reveals his true identity and arrests Zack for violating NRS 201.210. But Zack committed no crime because he would not have committed the lewd act but for the police threatening him. If the defense attorney can show that Bob entrapped Zack, the charge should be dropped.

Police often use lewdness laws to arrest gay men. Las Vegas Metro Police set up undercover sting operations in public restrooms and parks. Decoy officers pretend to be gay men out cruising and oftentimes will act flirtatious in order to bait unsuspecting gay men into doing something sexual. Our Las Vegas Nevada LGBT rights attorneys can help to fight back in cases of discriminatory policing where "suspects" were targeted based on sexual orientation.

4.2. False accusations

It is not uncommon for people to falsely to accuse enemies or ex-partners of breaking the law, especially sex crimes. Typically, their motivations are anger or revenge. In these cases, a skilled criminal defense attorney would conduct a thorough investigation to find evidence impeaching the accuser's credibility.

Example: Gina writes her neighbor Tom several angry emails threatening to ruin his life if he does not shut up his barking dog. When the barking continues, Gina files a fake police report claiming that she is traumatized after seeing Tom masturbating through an open window in his house. The police arrest Tom for violating NRS 201.210. But once Tom's defense attorney shows the prosecutor Gina's emails, the prosecutor suspects Gina fabricated the allegation and dismisses the charge.

It is also not uncommon for people to regret their decisions to engage in sexual behavior and then to blame their partner for touching them against their will. But regret does not reverse consent:

Example: Co-workers Tony and Mia go on a first date. At the end of the evening, Tony asks Mia if he can touch her under her shirt. Mia does not want it, but she says yes because she feels like she owes him because he paid for dinner. The next day, Mia is outraged to hear that Tony told all their co-workers that she is "easy." Mia then calls the police and claims he violated NRS 201.210 by touching her without permission. But if the prosecutor cannot prove that Tony touched Mia against her will, the charge should be dismissed.

In the above example, it does not matter that Mia did not want to let Tony touch her or that Tony broke her trust. By saying yes when Tony asked to touch her, Mia legally consented. Had Tony touched Mia without asking first and without her consent, then Tony could be convicted of violating NRS 201.210.

In the current socio-political context of #MeToo and Time's Up, people may be more likely to levy accusations of open or gross lewdness. But in a court of law, the D.A. still bears the very high burden of proving guilt beyond a reasonable doubt.

Typical evidence in open or gross lewdness cases includes surveillance video, photographs, eyewitnesses, and any recorded text or oral communications between the parties. As long as the defense attorney can show the court that the prosecution's evidence is not adequate or reliable enough to justify a conviction, the criminal charge should get dropped.

5. Can I seal a Nevada conviction of open or gross lewdness?

Gross misdemeanor violations of NRS 201.210 may be sealed from the defendant's criminal record two (2) years after the case closes. But felony convictions may never be sealed.10

Note that lewdness charges that get dismissed may be sealed right away:11

NRS 201.210 conviction

Waiting Period for a Record Seal

Gross Misdemeanor

2 years after the case ends.

Category D felony

May never be sealed.

Dismissal (no conviction)

No waiting period.

6. Can I get deported for open or gross lewdness?

The most important step for non-citizens facing lewdness charges to take is to retain an experienced attorney as soon as possible. The attorney may be able to get the charge dismissed or reduced to an offense that is non-removable. Learn more about Nevada criminal defense of immigrant laws.

7. What is the difference in Nevada between open or gross lewdness and indecent exposure?

NRS 201.210 tends to refer to sexual acts. In contrast, indecent exposure refers to baring private body parts whether or not it is sexually motivated.

Indecent exposure is defined as "any open and indecent or obscene exposure of his/her person, or of another person." An example would be to expose someone's genitalia or anus in a place where others could see.

In many cases, prosecutors bring NRS 201.210 charges in conjunction with indecent exposure charges. And both offenses have identical penalties.13

8. Related sex crimes

8.1. Nevada "Statutory Sexual Seduction" laws (NRS 200.368)

The Nevada crime of statutory sexual seduction is the legal term for statutory rape. It is when an adult 18 or over has sexual relations with a person aged 15 or 14 and there is a minimum 4-year age difference. It does not matter if the child consents to the sex.

Defendants under 21 years old face gross misdemeanor charges, carrying:

Call a Nevada criminal defense attorney

If you have been accused of violating NRS 201.210, contact our Las Vegas criminal defense attorneys at 702-DEFENSE (702-333-3673). We will do what we can to attempt to get the charges dropped or reduced to keep the incident off your criminal record and to steer you clear of the sex offender registry.

Legal References

NRS 201.210 Open or gross lewdness; penalty. 1. A person who commits any act of open or gross lewdness is guilty: (a) Except as otherwise provided in this subsection, for the first offense, of a gross misdemeanor. (b) For any subsequent offense, or if the person has previously been convicted of a sexual offense as defined in NRS 179D.097, of a category D felony and shall be punished as provided in NRS 193.130. (c) For an offense committed in the presence of a child under the age of 18 years or a vulnerable person as defined in paragraph (a) of subsection 8 of NRS 200.5092, of a category D felony and shall be punished as provided in NRS 193.130. 2. For the purposes of this section, the breastfeeding of a child by the mother of the child does not constitute an act of open or gross lewdness.

Ranson v. State, 99 Nev. 766, 670 P.2d 574 (1983)("It is generally accepted, however, that when a legislature uses the term "open" to modify the term "lewdness," as the Nevada Legislature has done, it intends to broaden the common law definition to include acts which are committed in a private place, but which are nevertheless committed in an "open" as opposed to a "secret" manner...We therefore conclude that it was sufficient that appellant committed the present lewd acts in an "open" fashion, clearly intending that his acts be offensive to his victim."); Young v. State, 109 Nev. 205, 849 P.2d 336 (1993)("Similarly, indecent exposure of one's genitals was punishable at common law without regard to whether the exposure was observed, or observed by a consenting adult, as long as the exposure occurred in a public place...A conviction under either NRS 201.210 or NRS 201.220 does not require proof of intent to offend an observer or even that the exposure was observed. It is sufficient that the public sexual conduct or exposure was intentional.").

See NT Crimes and Immigration eNewsletter (2011)("Because of this, the Nevada court was not required to specify the age of the victim in order to convict the defendant under § 201.210...the age of the victim is not required and is immaterial to satisfying an element of [NRS 201.210]...Therefore, the age of the victim as it appears in the Information cannot be considered under the modified categorical approach to sustain an aggravated felony for sexual abuse of a minor under 8 U.S.C. § 1227(a)(2)(A )(iii)."); INA 237(a)(2)(A).

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